Bill Text: NY A10543 | 2023-2024 | General Assembly | Introduced


Bill Title: Authorizes the use of certain alternative project delivery methods for the New York city public works investment act.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced) 2024-06-07 - substituted by s9849 [A10543 Detail]

Download: New_York-2023-A10543-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          10543

                   IN ASSEMBLY

                                      June 3, 2024
                                       ___________

        Introduced  by COMMITTEE ON RULES -- (at request of M. of A. Braunstein)
          -- read once and referred to the Committee on Cities

        AN ACT to amend the New  York  city  public  works  investment  act,  in
          relation  to authorizing the use of certain alternative project deliv-
          ery methods

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1. Subdivision (a) of section 2 of chapter 749 of the laws of
     2  2019, constituting the New York city public  works  investment  act,  as
     3  amended  by  section  4 of part AA of chapter 58 of the laws of 2022, is
     4  relettered subdivision (a-1) and a new subdivision (a) is added to  read
     5  as follows:
     6    (a)  "Alternative  project  delivery  contract" shall mean any project
     7  delivery method authorized  by  this  act,  including  design-build  and
     8  construction  manager build, pursuant to which one or more contracts for
     9  the provision of  design  and  construction  services,  or  construction
    10  management  and  construction  services, are awarded through an open and
    11  competitive method of procurement.
    12    § 2. Section 3 and section 6 of chapter  749  of  the  laws  of  2019,
    13  constituting  the New York city public works investment act, are amended
    14  to read as follows:
    15    § 3. Any contract for a public work undertaken pursuant to  a  project
    16  labor  agreement  in accordance with section 222 of the labor law may be
    17  [a design-build] an alternative project delivery contract in  accordance
    18  with this act.
    19    §  6.  Construction  with  respect to each contract entered into by an
    20  authorized entity pursuant to this act shall be deemed a  "public  work"
    21  to  be  performed  in accordance with the provisions of article 8 of the
    22  labor law, as well as subject to sections 200, 240, 241 and 242 of  such
    23  law and enforcement of prevailing wage requirements pursuant to applica-
    24  ble law or, for projects or public works receiving federal aid, applica-
    25  ble  federal requirements for prevailing wage. Any contract entered into
    26  pursuant to this act shall  include  a  clause  requiring  the  selected
    27  design builder or construction manager builder to obligate every tier of

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15832-02-4

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     1  contractor  working  on the public work to comply with the project labor
     2  agreement referenced in section three of this  act,  and  shall  include
     3  project labor agreement compliance monitoring and enforcement provisions
     4  consistent with the applicable project labor agreement.
     5    §  3. Subdivisions (c) and (d) of section 9 of chapter 749 of the laws
     6  of 2019, constituting the New York city public works investment act, are
     7  amended to read as follows:
     8    (c) Employees of authorized entities using [design-build]  alternative
     9  project  delivery contracts serving in positions in newly created titles
    10  shall be assigned to the appropriate bargaining unit. Nothing  contained
    11  in  this  act  shall  be  construed to affect (1) the existing rights of
    12  employees of such entities pursuant to an existing collective bargaining
    13  agreement, (2) the existing representational relationships among employ-
    14  ee organizations representing employees of such  entities,  or  (3)  the
    15  bargaining  relationships between such entities and such employee organ-
    16  izations.
    17    (d) Without limiting  contractors'  obligations  under  [design-build]
    18  alternative  project  delivery  contracts  to  issue  their  own initial
    19  certifications of substantial completion and  final  completion,  public
    20  employees  of authorized entities shall review and determine whether the
    21  work performed by contractors is acceptable and has  been  performed  in
    22  accordance with the applicable [design-build] alternative project deliv-
    23  ery  contracts,  and  if such public employees so determine, such public
    24  employees shall accept contractors' substantial or final  completion  of
    25  the  public  works  as applicable. Performance by authorized entities of
    26  any review described in this subdivision shall not be construed to modi-
    27  fy or limit contractors' obligations  to  perform  the  work  in  strict
    28  accordance with the applicable [design-build] alternative project deliv-
    29  ery  contracts or the contractors' or any subcontractors' obligations or
    30  liabilities under any law.
    31    § 4. Chapter 749 of the laws of 2019, constituting the New  York  city
    32  public  works investment act, is amended by adding a new section 13-a to
    33  read as follows:
    34    § 13-a. (a)  For purposes of this section:
    35    (1) "Construction manager build" shall mean a project delivery  method
    36  whereby a construction manager:
    37    (i)  serves  as  part  of  a team in conjunction with the owner in the
    38  design phase of the project;
    39    (ii) under the oversight of the owner, acts as the  single  source  of
    40  responsibility  to bid, select and hold construction contracts on behalf
    41  of the owner during the construction phase; and
    42    (iii) manages the construction project on behalf of the owner.
    43    (2) "Department" shall mean the New York city department of design and
    44  construction.
    45    (b) This section may only be applied to:
    46    (1) Design-build contracts solicited by the department  that  have  an
    47  estimated  cost  of  not  less  than ten million dollars, are undertaken
    48  pursuant to a project labor agreement in accordance with section 222  of
    49  the labor law and in connection with a project that is primarily related
    50  to:
    51    (i)  water  or  sewer  infrastructure,  and  primarily consists of the
    52  replacement of existing, or installation of new, water mains  or  sewers
    53  or  the  installation of assets to manage stormwater flow, or a combina-
    54  tion of the foregoing; or

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     1    (ii) coastal resiliency, and    primarily  consists  of  flood  walls,
     2  deployable  gates,  the relocation or protection of existing infrastruc-
     3  ture from flooding, or a combination of the foregoing; or
     4    (2)  Construction  manager build contracts solicited by the department
     5  that have an estimated cost of not less than five million  dollars,  are
     6  undertaken  pursuant  to  a  project  labor agreement in accordance with
     7  section 222 of the labor law and in connection with a  project  for  the
     8  construction or renovation of a cultural institution located on publicly
     9  owned  real  property  on  behalf  of  the  New  York city department of
    10  cultural affairs or a public library in the city of New York.
    11    (c) Notwithstanding any general, special, or local law, rule, or regu-
    12  lation to the contrary, a contractor selected by the department to enter
    13  into a construction manager build  contract  pursuant  to  this  section
    14  shall  be  selected through the two-step method described in subdivision
    15  (a) of section four of this act. The department may  use  the  types  of
    16  contracts  identified in subdivision (b) of section four of this act for
    17  contracts procured using the construction manager build delivery method.
    18    (d) Where the department determines in writing that it is in the  best
    19  interest  of  the  public  to  solicit  proposals using the design-build
    20  contract delivery method in connection with a  project  that  meets  the
    21  criteria  set forth in paragraph one of subdivision (b) of this section,
    22  without generating a list pursuant to the process set forth in paragraph
    23  one of subdivision (a) of section four of this act, the department shall
    24  release, evaluate and score a request  for  proposals  pursuant  to  the
    25  procedure  set  forth  in subdivision (e) of this section. To the extent
    26  consistent with applicable federal law, the department  shall  consider,
    27  when  soliciting  proposals  and  awarding any contract pursuant to this
    28  section, the participation of (i) entities that are certified as minori-
    29  ty- or women-owned business enterprises pursuant to article fifteen-A of
    30  the executive law, or certified pursuant to local law  as  minority-  or
    31  women-owned business enterprises, and (ii) small business concerns iden-
    32  tified  pursuant to subdivision (b) of section one hundred thirty-nine-g
    33  of the state finance law. In addition, nothing in this section shall  be
    34  deemed  to  supersede  any  pre-qualification guidelines or requirements
    35  otherwise authorized by law for the department.
    36    (e) The request for proposals shall set forth the public work's  scope
    37  of  work, and other requirements, as determined by the department, which
    38  may include separate goals for work under the contract to  be  performed
    39  by businesses certified as minority- or women-owned business enterprises
    40  pursuant to article fifteen-A of the executive law or certified pursuant
    41  to  local  law  as  minority-  or  women-owned business enterprises. The
    42  request for proposals shall also specify the  criteria  to  be  used  to
    43  evaluate the responses and the relative weight of each of such criteria.
    44  Such  criteria  shall  include  the  proposal's cost, the quality of the
    45  proposal's solution, the qualifications and experience of the  proposer,
    46  and other factors deemed pertinent by the department, which may include,
    47  but  shall  not  be  limited  to,  the proposal's manner and schedule of
    48  project implementation, the proposer's ability to complete the work in a
    49  timely and satisfactory  manner,  maintenance  costs  of  the  completed
    50  public  work,  maintenance of traffic approach, and community impact.  A
    51  contract awarded pursuant to this section shall be awarded to a  respon-
    52  sive  and  responsible  proposer,  which,  in consideration of these and
    53  other specified criteria deemed pertinent, offers  the  best  value,  as
    54  determined by the department.  The department may engage in negotiations
    55  or  other  discussions  with all qualified proposers that have expressed
    56  interest in response to the request for proposals released  pursuant  to

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     1  subdivision (d) of this section, provided that such department maintains
     2  a  written  record of the conduct of negotiations or discussions and the
     3  basis for every determination to continue or suspend negotiations,  and,
     4  provided,  further,  that if such department determines for a particular
     5  contract or for a particular type of contract that it  is  in  the  best
     6  interest of the public to negotiate or enter into discussions with fewer
     7  proposers,  it  shall  make  such  a  determination  in writing. If such
     8  department enters into such negotiations, such  department  shall  allow
     9  all proposers to revise their proposals upon conclusion of negotiations,
    10  and  shall  evaluate  any  such  revised  proposals  using  the criteria
    11  included in the request for proposals.  The request for proposals  shall
    12  include  a  statement  that  proposers  shall designate in writing those
    13  portions of the proposal that contain trade secrets or other proprietary
    14  information that are to remain confidential; that  the  material  desig-
    15  nated  as  confidential  shall  be  readily separable from the proposal.
    16  Nothing in this section shall be construed to  prohibit  the  authorized
    17  entity  from  negotiating  final contract terms and conditions including
    18  cost.  All proposals submitted shall be scored according to the criteria
    19  listed in the  request  for  proposals and such final  scores  shall  be
    20  published  on the authorized entity's website after registration of such
    21  contract or the date upon which such contract  may  be  implemented,  if
    22  registration requirements do not apply.
    23    (f)  The  reporting  requirement set forth in section thirteen of this
    24  act shall apply to contracts procured pursuant to this section, provided
    25  that the requirement that such report include a list of responding enti-
    26  ties shall not apply to any contract where no such list  was  generated.
    27  Such  report  shall  include a description of the scope of work for each
    28  project, whether the project used  the  design-build    or  construction
    29  manager  build  method  as described in subdivision (b) of this section,
    30  the percentage of alternative project delivery contracts that  used  the
    31  methods  described  in  subdivision  (b)  of  this  section, the type of
    32  contract described in subdivision (b) of section four of this  act  that
    33  was  used  to  procure  the  project,  information  regarding  the total
    34  contract price upon contract award, the total contract price upon  final
    35  completion  of  the project, the department's initial projected estimate
    36  of the cost of the project and  the  participation  rate  of  and  total
    37  dollar value of monies paid to minority- and women-owned business enter-
    38  prises  and  small  business concerns under alternative project delivery
    39  contracts.
    40    § 5. Section 14 of chapter 749 of the laws of 2019,  constituting  the
    41  New  York  city  public works investment act, as amended by section 4 of
    42  part AA of chapter 58 of the  laws  of  2022,  is  amended  to  read  as
    43  follows:
    44    §  14.  This act shall take effect immediately and shall expire and be
    45  deemed repealed eight years after such date, provided that, public works
    46  with requests for qualifications or requests for proposals issued  prior
    47  to  such  repeal  shall be permitted to continue under this act notwith-
    48  standing such repeal.
    49    § 6. This act shall take effect immediately; provided,  however,  that
    50  this  act  shall  not  apply  to any public work for which a request for
    51  proposals was issued prior to the date on which this act  takes  effect;
    52  and provided further, however, that the amendments to chapter 749 of the
    53  laws  of  2019  made  by sections one through four of this act shall not
    54  affect the expiration and repeal of such chapter  and  shall  be  deemed
    55  repealed therewith.
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